The Supreme Court has recently made a rather large dent in police negligence liability in the case of Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, with many lawyers taking the view that it amounts to the largest inroad yet into what has effectively been virtual police immunity for acts resulting in unintended harm to members of the public. Personal injury lawyers are rejoicing – police officers, not so much.

The case involved a suspected drug dealer who had been seen by police officers plying his trade on the street. A decision was taken to make an arrest, with two officers taking hold of the suspect whilst another two arrived shortly afterwards. The five men were then involved in a struggle, during which they fell to the floor on top of a nearby pedestrian who had been standing nearby. Crucially, the police officers accepted that there was a risk the suspect may try to escape and that they always try to minimise the risk to the public when performing any arrest.

The lower court and the Court of Appeal ruled that whereas the police may have been negligent in not taking into account the presence of the pedestrian, no duty of care was imposed. The Supreme Court disagreed, stating that where precedents have already determined a duty of care should be imposed in particular circumstances, there is no need for this to be reconsidered in later cases. The judgment goes on to explain that in cases involving the Police the courts have always prevented a duty of care arising from the acts of third parties, a duty does arise when there is a positive act on the part of the Police that results in harm to a bystander even if caused by a third party. Here, the arrest was a positive act and the harm was foreseeable consequence.

The court summed up the principle at Para.37: “(A duty of care can be owed for the harm caused by a third party) where the public authority has created a danger of harm which would not otherwise have existed, or has assumed a responsibility for an individual’s safety on which the individual has relied”

Where that leaves earlier authorities such as Desmond v Nottinghamshire Police [2011] EWCA Civ 3 is not clear, though it does appear as if the Supreme Court has effectively driven a coach and horses through them.

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